The information charged that the defendant “did willfully, unlawfully, and feloniously assault one James Crawford with intent to commit mayhem.”
At the conclusion of the evidence certain written requests to instruct the jury were submitted by counsel for defendant, and, at the conclusion of the argument, these, and also certain instructions prepared by counsel for the people, were given, and following these the court *672gave certain other instructions of its own motion, and was proceeding to instruct the jury as to the form of their verdict, when counsel for defendant, Mr. Eoth, said: “If the court please, have you forgotten an instruction as to the degrees ? There are two degrees.” The Court. “ You have offered no instruction on that subject.”
Mr. Roth. “ I thought it customary for the court to give those instructions.”
The Court. “ I was going to instruct them as to the form of the verdict.”
Mr. Roth. “ Very well, the form may give it.” Thereupon the court instructed the jury that, if they found the defendant guilty of an assault with intent to commit mayhem, their verdict should be: “We, the jury, find the defendant guilty of an assault with intent to commit mayhem; should you find the defendant not guilty, the form of your verdict should be, ‘We, the jury, find the defendant not guilty.’ ”
Mr. Roth. “ I would like to ask, can we have an instruction as to the degree of this crime ? I think the charge includes the charge of simple assault.”
The court replied, in substance, that a rule of that court required a party who desired instructions given to present them to the court before the argument; that it did8not like to take chances on giving an instruction on the spur of the moment, and declined to instruct the jury upon that subject.
The court erred in not instructing the jury as requested. Section 1127 of the Penal Code provides: “ In charging the jury the court must state to them all matters of law necessary for their information. Either party may present to the court any written charge, and request that it be given. If the court thinks it correct and pertinent it must be given; if not, it must be refused.”
Section 1159 of the Penal Code provides: “The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with *673which he is charged, or of an attempt to commit the offense”; and a charge of an assault with intent to commit mayhem, murder, robbery, or any offense involving violence to the person, necessarily includes the assault. The rule of court referred to may be proper and beneficial as a general rule, and, when applied to doubtful and controverted questions of law, ought to be usually adhered to; but, as was said in Pickett v. Wallace, 54 Cal. 148: “ Rules of court are but a means to accomplish the ends of justice, and it is always in the power of the court to suspend its own rules, or except a particular case from their operation whenever the purposes of justice require it.”
The instruction desired by the defendant was one usually given by courts of their own motion. If the court had overlooked it, and counsel had not called the attention of the court to the omission, a different question would be presented; but in this case the observance of the rule operated to subvert its object, viz., to promote the purposes of justice. Having made the ruling, the defendant’s motion for a new trial should have been granted upon that ground.
Respondent’s contention that the omission or refusal of the court to instruct the jury that they might find the defendant guilty of assault was proper, because “ the crime was the greater one or none at all,” is without merit. Cases for murder, where the court refused to instruct that a verdict for manslaughter might be found, are broadly distinguishable from the case at bar, since here an assault is directly charged; and, if no assault was made, the higher offense could not be committed. (See People v. Defoor, 100 Cal. 150.)
The words, “ or bite the lip,” used in the third instruction given at the request of the prosecution, is not the equivalent of the word “ slit,” used in section 203 of the Penal Code. If this injury to the lip was such as to constitute mayhem the defendant should have been charged with that offense; but, as it is not claimed that the bite amounted to mayhem, the instruction should *674have followed the statutory definition and used the word “ slit.” Since the case itself proves that the lip may be bitten in such a manner as not to amount to mayhem, it follows that the intent to “ bite” is not necessarily the equivalent of an intent to “ slit.”
The judgment and order appealed from should be reversed and a new trial ordered.
Vanclief, C., and Searls, C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are reversed and a new trial ordered. Garoutte, J., Harrison, J., McFarland, J., Henshaw, J., Van Fleet, J., Temple, J.